# Sunil Kumar v. State of U.P. & Anr

- **Citation:** (2023) 10 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-12
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-state-of-u-p-anr-49257
- **Pages:** 6

## Headnote

Law-Constitution
of
India,1950-Article 227 - Indian Penal
Code, 1860-Sections 420, 467, 468 & 471
-
Negotiable
Instrument
Act,1881
-
Section 138 -Challlenge to-summoning
order-In the statement given by the
complainant under section 200 Cr.PC that
complainant and accused persons were
engaged
in
buying
and
selling
of
buffaloes-a cheque of Rs. 13,50,000/- was
given for certain buffaloes purchased by
the accused-the cheque was dishonoured
because there was no such bank accountIn reply accused said nothing about the
bank account number rather he said that
some cheques were missing of his cheque
book-he is taking a defence that cheque in
question, somehow fell in the hands of
complainant and he misused it-Thus, the
summoning order is against the provisions
of law on two grounds-First, that the
cheque was dishonoured for the reasons
which are not covered under section 138
N.I. Act-Secondly, the complaint is premature, in asmuch as it was filed before
the cause of action arose-Hence, no
offence under section 138 of N.I. Act is
made
out-Hence,
the
impugned
summoning order is set aside-learned trial
court is directed to give an opportunity of
hearing to the complainant and pass a
fresh order according to law.(Para 1 to 20)

B. The provision of section 138, including
Clause (c) to the Proviso, being penal,
have to be strictly construed. In short,
there can be no valid complaint, before
the expiry of the period of 15 days from
the date of service of notice of demand,
upon
the
payee
by
the
drawer.
Proceedings taken on the basis of a
complaint brought earlier, would not at all
be maintainable.(Para 15)

The writ petition is disposed of. (E-6)

List of cases cited:

## Text

10 All. Sunil Kumar Vs. State of U.P. & Anr.
1047
petitioners to file appropriate petitions
afresh. It is made clear that no opinion
expressed herein shall be construed to be
on merits of the case of the petitioners.

37.

Subject
to
the
aforesaid
observation, this petition is dismissed.

----------
(2023) 10 ILRA 1047
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 9902 of
2022(Criminal)

Sunil Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Narendra Singh Chahar, Sri Girish Kishor
Sharma

Counsel for the Respondents:
G.A., Sri Mohit Kumar

A.
Criminal
Law-Constitution
of
India,1950-Article 227 - Indian Penal
Code, 1860-Sections 420, 467, 468 & 471
-
Negotiable
Instrument
Act,1881
-
Section 138 -Challlenge to-summoning
order-In the statement given by the
complainant under section 200 Cr.PC that
complainant and accused persons were
engaged
in
buying
and
selling
of
buffaloes-a cheque of Rs. 13,50,000/- was
given for certain buffaloes purchased by
the accused-the cheque was dishonoured
because there was no such bank accountIn reply accused said nothing about the
bank account number rather he said that
some cheques were missing of his cheque
book-he is taking a defence that cheque in
question, somehow fell in the hands of
complainant and he misused it-Thus, the
summoning order is against the provisions
of law on two grounds-First, that the
cheque was dishonoured for the reasons
which are not covered under section 138
N.I. Act-Secondly, the complaint is premature, in asmuch as it was filed before
the cause of action arose-Hence, no
offence under section 138 of N.I. Act is
made
out-Hence,
the
impugned
summoning order is set aside-learned trial
court is directed to give an opportunity of
hearing to the complainant and pass a
fresh order according to law.(Para 1 to 20)

B. The provision of section 138, including
Clause (c) to the Proviso, being penal,
have to be strictly construed. In short,
there can be no valid complaint, before
the expiry of the period of 15 days from
the date of service of notice of demand,
upon
the
payee
by
the
drawer.
Proceedings taken on the basis of a
complaint brought earlier, would not at all
be maintainable.(Para 15)

The writ petition is disposed of. (E-6)

List of cases cited:

1. Rajeshwar Prasad Bhardwaj Vs St. of U.P. &
ors. (2019) 107 ACC 79

2. Yogendra Pratap Singh Vs Savitri Pandey &
anr. (2014) 87 ACC 602 SC

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Narendra Singh Chahar,
learned counsel for the petitioner, Sri Mohit
Kumar, learned counsel for the respondent
no.2 and learned A.G.A. for the State.

2. This petition has been filed by the
petitioner- Sunil Kumar with a prayer that
the summoning order dated 20.12.2018
passed by the trial court and the order of
the revisional court affirming the same,
passed on 24.09.2022, be set-aside.
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Relevant facts related to this
petition are as below:-

The respondent no.2 filed a
Complaint Case No.63 of 2017 against the
petitioner- Sunil Kumar under sections-
420, 467, 468, 471 I.P.C. and section- 138
N.I. Act with the allegations in nutshell that
the accused-petitioner gave an account
payee
cheque
to
the
complainantrespondent no.2, but the same was
dishonoured with the remark that there was
no account of that number. After hearing
the complainant, the learned trial court
took cognizance and issued summons to the
accused (the petitioner herein) to face the
trial under section- 138 N.I. Act. The
accused
preferred
a
revision
being
Criminal Revision No.40 of 2022, however
the same was dismissed and the summoning
order was affirmed by the order of the
revisional court passed on 24.09.2022.

4. The contention of the petitioner is
that the petitioner was not under any legal
obligation to discharge any debt or liability
and therefore no offence under section 138
N.I. Act is made out. The petitioner is
working as Deputy Commissioner of
Income Tax and that he cannot engage
himself in any business of selling buffaloes.
The story given in the complaint is false.
Secondly, that notice dated 18.01.2017 was
sent to the petitioner, which was replied by
him on 23.01.2017. As the mandatory
period of 15 days did note lapse between
date of receipt of demand notice and filing
of complaint case, therefore the essential
requirements for constituting the offence
under section 138 N.I. Act have not been met.
Thirdly, that the orders passed by court below
is illegal, inasmuch as, it requires the accused
to deposit Rs.16,20,000/- for compounding of
the offence. It is said that the orders
impugned are illegal and therefore cannot be
sustained in law.

5. The contentions of the petitioner are
vehemently opposed by the respondents on
the premise that the law provides a
presumption to be drawn as regards the
liability to pay the debt, as provided in
section- 118 of N.I. Act. It is argued that the
law provides that until contrary is proved, it
shall be presumed that every negotiable
instrument
was
made
or
drawn
for
consideration.

The provision of Section- 139 of
N.I. Act have also been referred to by the
respondents which says that it shall be
presumed, unless the contrary is proved, that
the holder of the cheque received the cheque
of the nature referred to in section- 138 N.I.
Act for the discharge, in whole or in part, of
any debt or other liability.

6. In the light of the above provisions of
law, it is argued that the accused-petitioner
cannot agitate the matters at this stage. He
shall have ample opportunity to put before
the court below his side of the defence, on
both the counts, as referred to above at
appropriate stages of the trial. It is further said
that the proceedings under section- 138 N.I.
Act are summary in nature and that this is not
the stage when such issues could be raised.
The matter requires to be heard at the earliest
and that, unless some flagrant violation of
law is shown, the court is not empowered to
interfere in the case in exercise of
jurisdiction under Article 227 of the
Constitution.

7. Following material things emerge
from perusal of the papers:-

The complainant-Om Pal Singh
filed a complaint against the accused
10 All. Sunil Kumar Vs. State of U.P. & Anr.
1049
person under sections- 420, 467, 468, 471
I.P.C. besides section- 138 N.I. Act. The
allegation has been that the accused issued
a cheque of Rs.13,50,000/-, as the price of
15
buffaloes
he
bought
from
the
complainant. The aforesaid account payee
cheque no.375595 was submitted in the
bank for encashment but the same was
returned to the complainant on 06.01.2017
with the remark in memo that "there was
no such account". The complainant sent a
notice of demand on 18.01.2017, but the
same was replied with a concocted story.
The allegation is that accused has
dishonestly, to obtain unlawful benefit for
himself, did not pay the price of the
buffaloes and has issued a cheque with a
non-existent false account number. Reply to
notice of demand is dated 23.1.2017 and
the
complaint
was
presented
on
03.02.2017.

8. The provisions of section- 138 N.I.
Act are as below:-

"Dishonour
of
cheque
for
insufficiency,
etc.,
of
funds
in
the
account.-

Where any cheque drawn by a
person on an account maintained by him
with a banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either
because of the amount of money standing to
the credit of that account is insufficient to
honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to have
committed an offence and shall, without
prejudice to any other provisions of this
Act, be punished with imprisonment for [a
term which may be extended to two years],
or with fine which may extend to twice the
amount of the cheque, or with both:

Provided that nothing contained
in this section shall apply unless-

(a) the cheque has been presented
to the bank within a period of 3 months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice in
writing, to the drawer of the cheque,
[within thirty days] of the receipt of
information
by
him
from
the
bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice."

9. From bare reading of the above, it
becomes clear that the provisions of section
138 N.I. Act are attracted when a cheque is
dishonoured and returned by the bank
unpaid for two reasons - Firstly, for
insufficiency of funds; Secondly, if it
exceeds the amount arranged to be paid
from that account.

10. This is well-known that a cheque
may be dishonoured for a number of
reasons, which may range from such
innocuous reasons as dissimilarity of
signatures, incomplete signatures of the
drawer, stopping a withdrawal owing to
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
death of account holder, instrument being
post dated or out dated or lacking any
proper
date,
account
having
been
transferred to another branch, lack of
endorsement of payee, difference in name
and many more. One of the reasons could
also be an instruction to stop the payment
but that point is not in issue here. Hence, no
elaboration is required. The point which I
want to emphasize is that, that the cause of
action to file a complaint for the offence of
section 138 N.I. Act requires dishonour of
cheque for a particular reason as given in
the section 138 N.I. Act. However, where
cheque is dishonoured for any technical
reason or reason, which may be categorized
as innocuous one, the provisions of section
138 N.I. Act may not be attracted.

11. In the instant case, the cheque was
dishonoured as no such account was found.
The copy of memo is on record which
verifies the fact that the cheque in question
was dishonoured for that reason only. The
demand notice issued by the complainant
clearly said that the bank dishonoured the
cheque with a remark "ऐसा कोई खाता नहीं है".
The respondents in his counter affidavit has
not given any explanation regarding the
remark mentioned in the memo of
dishonour.

12. Further, it may also be noted that
the respondent has never denied that the
cheque bore his signature. In his reply to
the notice admittedly given by him on
23.01.2017, he has given a different story
that his 'signed cheque' was misused by the
complainant. He has nowhere given any
explanation as regard having no account of
that number. In his reply to the notice given
by the petitioner, he never said that no
legally payable debt was due on him, or
that he never purchased any buffaloes from
the complainant; or that the allegations in
the demand notice dated 18.01.2017 are
wholly false. Rather his defence is that his
signed cheques were stolen.

13. The summoning order and the
order passed by the revisional court
affirming the same has been challenged
mainly on two grounds - Firstly, there was
no legally dischargeable debt or liability on
him; Secondly, that the complainant did not
let the prescribed period of 15 days to lapse
from the date of the notice. Therefore, the
ingredients for constituting the offence
under section 138 N.I. Act are not fulfiled,
hence the summoning order is bad in law.

These facts are not disputed.

* The cheque was presented on
03.01.2017.

* Same was dishonoured on
06.01.2017 with a remark that "ऐसा कोई खाता
नहीं है" and the information was received by
him the same day.

* Notice of demand bears a date
of 18.01.2017.

* The reply by the accused to the
demand notice was given on 23.01.2017.

* The complaint has been filed on
03.02.2017.

14. From the above, it is indisputable
that the demand in writing was raised
within 30 days of the receipt of information
of dishonour of cheque. From the reply
given by the accused to the demand notice,
it is clear that he received the information
of such notice on 21.01.2017. If the above
date i.e. 21.01.2017 is excluded from
counting, the cheque amount should have
been paid by 05.02.2017. 05.02.2017 is the
10 All. Sunil Kumar Vs. State of U.P. & Anr.
1051
most important date on which, as per the
provisions of section 138(c) N.I. Act cause
of
action
actually
arose.
Now,
the
provisions of section 142(1)(b) N.I. Act
come into play which say that "such
complaint has to be filed within one month
from the date from which the cause of
action arise under clause (c) of proviso to
section 138 N.I. Act.

From the papers on record, the
position emerges that the complaint was
filed on 03.02.2017 i.e. even before the
prescribed period of 15 days had elapsed.

15. In Rajeshwar Prasad Bhardwaj
vs. State of U.P. and Others, 2019 (107)
ACC 79, while dealing with similar issue it
was held:-

"The provision of section 138,
including Clause (c) to the Proviso, being
penal, have to be strictly construed. In
short, there can be no valid complaint,
before the expiry of the period of 15 days
from the date of service of a notice of
demand, upon the payee by the drawer.
Proceedings taken on the basis of a
complaint brought earlier, would not at
all be maintainable."

The above conclusion was
drawn by the court on the basis of law
laid down by the Supreme Court in
Yogendra Pratap Singh vs. Savitri
Pandey and Another, 2014 (87) ACC
602 SC.

The
position
of
law
as
explained in the above mentioned case
of
Rajeshwar
Prasad
Bhardwaj
(supra), applies to the facts of instant
case, therefore, the summoning order, as
far as the offence under section 138 N.I.
Act is concerned, is bad in law and is liable
to be set-aside.

In my view, the summoning order
is against the provisions of law on two
grounds - First, that the cheque was
dishonoured for the reasons which are not
covered under section 138 N.I. Act;
Secondly, the complaint is pre-mature,
inasmuch as, it was filed before the cause
of action arose.

16. The matter does not end here. The
story as given in the complaint says that a
cheque in question was prepared and
executed by the drawer with the intention
to cheat the complainant; the complainant
was cheated of his money. In the statement
given by the complainant under section 200
Cr.P.C., it is stated by the complainant that
both the sides are well acquainted with
each other; the complainant's in-laws
family resided in the same village as the
accused persons and that the complainant
had faith on him; they were engaged in
buying and selling of buffaloes; as a price
for certain buffaloes purchased by the
accused, he was given a cheque of
Rs.13,50,000/-. This fact has come in
evidence that the cheque was dishonoured
because there was no such bank account. In
the reply given by the accused he has said
nothing about that bank account number
rather (in his reply to notice dated
23.01.2017), he has said that some cheques
of his cheque book were missing and he
lodged a report with Police Station-Sadar,
District-Saharanpur. He has not denied that
cheque in question was not signed by him.
From perusal of reply to notice and the
report, it seems that he is taking a defence
that cheque in question, some how fell in
the hands of complainant and he misused it.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

Now the pertinent question arises
whether an offence of 'cheating' is primafacie made out on the basis of the
complaint story, the oral evidence under
sections 200/202 Cr.P.C. and the papers
produced in support thereof.

17. The trial court as well as the
revisional court completely ignored the fact
whether from the material on record, if not,
the offence under section 138 N.I. Act, any
other offence is made out.

18. The Court is of the view that no
offence under section 138 of N.I. Act is
made out and the summoning order has
been passed in flagrant violation of law and
therefore this is a fit case for exercise of
powers
under
Article
227
of
the
Constitution of India. Hence the impugned
summoning order dated 20.12.2018 of the
trial court and the impugned order dated
24.09.2022 of the revisional court are
hereby set-aside.

19. The learned trial court is directed
to give an opportunity of hearing to the
complainant and pass a fresh order
according to law in the light of the
observations given in the body of the
judgement.

20. Accordingly, this petition is
disposed of.

21. Copy of the order be immediately
certified to the court concerned for
necessary action.
----------
(2023) 10 ILRA 1052
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 10770 of 2022
(Criminal)

Prabhakar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sandep Kumar Tiwari, Sri K.K. Tiwari

Counsel for the Respondents:
G.A., Sri Shivanand Mishra

A.
Criminal
Law-Constitution
of
India,1950-Article
227
&
Criminal
Procedure
Code,1973-Section
146(1)-
Neither of the parties could show any
material in reaching an inference as to
who was in actual possession on the date
notice was issued-Neither disputed gift
deed, sale deed or other papers regarding
title nor entries in revenue record are
sufficient to establish the possession of
any particular party on the disputed landthe
SDM
followed
the
prescribed
procedure, called the parties to file
written statements, took the evidence of
both the sides and came to a conclusion
that none of the parties was in actual
possession-Where
any
contingencies
exist,
the
Executive
Magistrate
may
proceed to attach the property until
competent court determines their rightsIn the instant case, the Magistrate found
one of the contingencies to exist and
revisional court agreed with the sameHence, no interference requires.(Para 1 to
34)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Sanjai Kumar & anr. Vs VIth A.D.J. Bareilly &
ors. (1996) CriLJ 2413

2. Raj Bahadur & ors. Vs St. of U.P & anr., CRLR
No. 1032 of 1994